Edward Keventer Private Limited @APPELLANT@Hash Atanu Banerjee and Others

Sabyasachi Bhattacharyya, J.

This revisional application has been preferred by the defendant no. 6/petitioner against the portion of an order dated August 06, 2018, whereby an

application filed by the plaintiffs/opposite party nos. 1 to 3, for amendment for their plaint, was allowed. The suit, as originally filed, comprised of the

following reliefs:-

a) “A decree be passed in preliminary form for partition of the suit properties by metes and bounds declaring the 50% share of the plaintiffs in

respect of schedule ‘a’ and ‘b’ properties and also 40% share of consideration money for rs.8,500/- out of schedule ‘c’ property

mentioned in the schedules of the plaint;

b) A final decree for partition of the entire suit properties by metes and bounds to be passed in favour of the plaintiffs in terms of the preliminary

decree with delivery of possession therein by the help of partition commissioner to be appointed by the ld. court;

c) A decree for partition and declaration that the plaintiffs are the owners of the undivided 50% share of the premises no. 20, Gopal Chandra

Mukherjee Road [schedule a(iv)] of the plaint and the deed of conveyance between the defendant nos. 1 and 2 with the defendant no. 6 is not binding

upon the plaintiffs;

Subsequently, by virtue of amendment, prayer c) of the plaint was sought to be amended, thereby inter alia introducing a declaration that the

defendant nos. 1 and 2 had no right, title or interest to transfer the entire premises no. 20, Gopal Chandra Mukherjee Road, Kolkata 2, exceeding their

50% of share in favour of the defendant no. 6 who has not acquired any interest more than 50% in the said property by virtue of the said deed of

conveyance dated 09.11.1992.

The plaintiffs, by such amendment, also wanted to introduce the consequential relief of perpetual injunction and factual averments in support of the

said reliefs.

This apart, a relief of recovery of Khas possession was also sought to be introduced.

The Trial Court, by the impugned order, disallowed the introduction of the relief of recovery of Khas possession, but substantially allowed the other

portion of the amendment, as indicated above.

Certain dates are relevant for the purpose of the present adjudication, which are as follows:

November 19, 1992 Disputed sale effected by defendant nos. 1 and 2 in favour of defendant no. 6/petitioner. February 16, 1991 Plaintiffs allegedly

learnt of the details of such sale deed for the first time. February 18, 1991 Current partition suit filed.

Learned senior counsel appearing for the defendant no. 6/petitioner argues that the order allowing amendment was, on the face of it, unreasoned,

which defect could not be subsequently cured even by this revisional Court.

In support of such proposition, Learned senior counsel cites the following judgments :

i) (2007) 4 CHN 712 [ Uniworth Resorts Limited & Anr. Vs. Ashok Mittal & Ors.] (paragraphs 12, 14).

ii) AIR 2010 SC 1285 [The Secretary and Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity and Ors. ] (paragraphs 31-34).

iii) (2010) 13 SCC 427 [Oryx Fisheries Private Limited vs. Union of India & Ors.] (paragraphs 40, 41).

Learned senior counsel appearing for the petitioner next submits that the present opposite party no. 1, namely Atanu Banerjee, filed the amendment

application by himself, without properly representing the other plaintiffs. The said Atanu, it is submitted, had been substituted in place of one of the

original plaintiffs on the latter’s death. As such, the said substituted plaintiff could not, in law, deviate from the original pleadings of his

predecessor-in-interest and was bound to adopt such original pleadings of the deceased plaintiff, in whose shoes he had stepped in. Learned senior

counsel cites a judgment AIR 1972 CAL 494 [Babulal N. Shukla vs. Jeshankar N. Shukla] in support of the above contention.

It is next submitted that if one of the plaintiffs files an amendment application, the same can be allowed only if it is not inconsistent with the original

pleadings. In support of the said proposition, the petitioner cites a judgment reported at 2012 (2) CHN (CAL) 737[ Ranjit Ghosh vs. Manoj Pal ]

(paragraphs 14, 15).

It is also submitted that the said Atanu consented to the grant of probate of Protima’s will.

It is next contended on behalf of the petitioner that the amendment in question was filed to avert the rejection of plaint and as such, ought to have

been rejected altogether. In support of the said proposition, Learned senior counsel cites (1990) 2 SCC 42 [Patasibai & Ors. vs. Ratanlal] (paragraph

9).

Lastly, the petitioner contends that the proposed relief, sought to be introduced by way of amendment, was ex-facie time-barred. As such, it is

argued, the Court below acted without jurisdiction in allowing such amendment substantially.

In controverting the aforesaid arguments, learned senior counsel for the plaintiffs/opposite party nos. 1 to 3 submits that, from the impugned order,

it is evident that the Trial Court ascribed sufficient reasons for allowing amendment and as such, the impugned order ought to be sustained.

It is further argued that the proposed amendments were necessary to decide the real questions in controversy in the suit and, as such, were rightly

allowed.

Learned counsel for the opposite party nos. 1 to 3 cites a judgment reported at (2006) 4 SCC 385 [ Rajesh Kumar Aggarwal and Ors. vs. K.K.

Modi and Ors.] (paragraphs 16 to 18). It was held in the said decision that, if necessary to decide the real dispute, and for the purpose of determining

the real question in controversy between the parties, amendments should be allowed.

Learned counsel for the opposite party nos. 1 to 3 next cites a judgment reported at (1978) 2 SCC 91 [Ganesh Trading Co. vs. Moji Ram]

(paragraph 4, 5). Omission in pleading essential facts or defective cause of action, it was held in the said judgment, could be cured by amendment. It

was further held that even the cause of action could be constituted by amendment, where there was none in the pleadings, if not ab-initio completely

absent.

Learned counsel next relies upon a judgment reported at 2018 (3) CHN (CAL) 552 [VCK Share and Stock Broking Services Ltd. vs. Bank of

Rajasthan Ltd.] (paragraphs 7, 8). In such judgment, it was held that amendments to introduce subsequent events were to be allowed. It was further

held that even the cause of action could be allowed to be perfected by amendment.

Learned counsel for the opposite party nos. 1 to 3 argues further that even if a substituted party filed an application for amendment, not seeking to

introduce contradictory pleadings but only to incorporate elucidative pleadings, such amendments ought to be allowed.

It is then submitted on behalf of the opposite party nos. 1 to 3 that, if not palpably time-barred, amendments to pleadings ought not to be rejected.

In support of such contention, a judgment reported at (2001) 2 SCC 472 [RaguT hilak D. Jhon vs. S. Rayappan and Ors.] (paragraphs 5, 6) is

cited. It was held in the said judgment that the dominant purpose of allowing amendments was to avoid multiplicity. If the plea of limitation was

arguable, the amendment should be allowed and the question could be decided as an issue in the suit.

Lastly, it is contended that since the petitioner accepted costs, as directed to be paid by the Trial Judge in the impugned order, the petitioners are

estopped from challenging such order. In support of the said contention, Learned counsel for opposite party nos. 1 to 3 relies upon a judgment reported

at 37 IndCas 804 (CAL) [Banku Chandra Bose and Anr. vs. Marium Begum and Anr.]. In the said judgment, a Full Bench of this Court held that if

conditional costs were accepted in terms of the order impugned, the said order could not be challenged by the person so accepting.

In the light of the foregoing arguments, learned counsel for the plaintiffs/opposite party nos. 1 to 3 argued that the present revisional application

ought to be dismissed.

As to paucity of reasons, the trial Judge, upon consideration of the respective arguments of parties, came to a finding that the proposed

amendment, except for the relief of recovery of possession, was formal and was necessary for determining the real questions in controversy in the

suit. Although such reasons might appear at first blush to be on the cryptic side, it cannot be said that the impugned order was entirely devoid of

reasons. Some valid reasons were furnished in support of the conclusion of allowing the bulk of the amendments sought.

The next argument advanced on behalf of the petitioner related to the alleged deviation from the original pleadings by way of the amendment.

Either in the capacity of a substituted plaintiff or as one of the several plaintiffs, Atanu had to adopt the original pleadings in substance and could not

materially deviate from the same.

A comprehensive reading of the proposed amendment would show that the same did not transgress the periphery of the original pleadings, but

emanated in spirit from the original pleadings and was intended to be an elaboration of the same. The amendment sought in relief c), which is a major

bone of contention, did not alter the original character of the said relief, to the effect that the defendant nos. 1 and 2 had fifty per cent share in the suit

property. What was sought to be introduced was that the said two defendants had no right, title or interest to be transferred in respect of the entire

premises no. 20, Gopal Chandra Mukherjee Road, Kolkata 2, exceeding their fifty per cent share therein.

Not only was such relief implicit in the declaration originally sought, as to the defendant nos. 1 and 2 having only fifty per cent share in the suit

property, the same was firmly ensconced in the original pleadings in the body of the plaint, read meaningfully.

The other argument, that Atanu had filed the amendment application for himself and not for all the plaintiffs, was also not based on firm ground,

since the application for amendment was described to be filed by the plaintiffs as a body and no objection thereto was raised by the rest of the

plaintiffs at any point of time. Even if Atanu, the substituted plaintiff, had filed the application for himself, it would not matter, since the amendment

was not calculated to change the nature and character of the suit, as originally filed, nor was inconsistent with the original pleadings.

Considering next the petitioner’s argument, that the amendment was intended to avert the rejection of plaint, it is evident, as also observed in

the order passed in C.O. No. 3001 of 2018, that the rejection of plaint could be averted even in the absence of such amendment. Central to the theme

of the original plaint was the proposition that the defendant nos. 1 and 2 owned only fifty per cent of the suit property. The amended relief c) and the

connected factual amendments were natural corollaries of such proposition and were not new concepts, foreign to the original pleadings.

As such, the original pleadings could justify the plaint claim, that the defendant no. 6/petitioner had only acquired fifty per cent share in the suit

property, even without challenging the sale deed in favour of the petitioner. The amendment was intended only to elucidate and reinforce such

pleadings.

The last contention of the petitioner was that the relief sought to be introduced by amendment was palpably time-barred. However, a cursory

perusal of such amendment would belie such argument.

As to the change sought in relief c), it was only intended to challenge the basis of the title sought to be transferred, and did not challenge the

relevant sale deed at all. What was contended was that the defendant nos. 1 and 2 could transfer only the fifty per cent share in the concerned

property which belonged to them and not the entire property, irrespective of the existence of the sale deed.

As regards relief g), the proposed amended relief of permanent injunction was based on a continuing cause of action and hence could not attract

the law of limitation.

Hence the present revisional application fails on all counts. The impugned order, insofar as it relates to substantially allowing the amendment

application of the plaintiffs/opposite parties, was justified and correct in law and, as such, ought not to be interfered with.

Accordingly C.O. No. 3114 of 2018 is dismissed on contest against the opposite party nos. 1 to 3.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.